Whether A Party Who Failed To File Pleadings Can Be Said To Have Waived The Right To Cross-Examine Witnesses

Spread the love

CASE TITLE:               NANKPA v. NARCHU & ANOR (2023) LPELR-59614(CA)





Log in to primsol.lawpavilion.com and enjoy the best E-journals, textbooks, and many more

To subscribe to Primsol, go to store.lawpavilion.com.

For further enquiries/assistance, send an email to customercare@lawpavilion.com or call 08050298729






The 1st Respondent was the Claimant before the trial Court in a suit commenced against the Appellant as the 1st Defendant and other Defendants by means of a Writ of Summons filed on 10/5/2012. The Appellant entered appearance vide a Memorandum of Appearance filed on 28/5/2012 but did not file any pleadings within the time allowed by the Rules of the trial Court 2010. On 11/7/2012, the Appellant as 1st Defendant was neither present nor represented by counsel when the matter came up for hearing before the trial Court, and consequently, hearing notice was ordered to be served on the Appellant and the matter was adjourned to 13/7/2012 for hearing. On 13/7/2012, the Appellant and his counsel were present before the trial Court and the matter was further adjourned to 27/7/2012 to enable the Appellant file his pleadings. However, on 27/7/2012, the Appellant was in Court but he was not represented by counsel, and on the application of counsel for the 1st Respondent as Claimant, the trial Court proceeded to take the witnesses for the 1st Respondent and subsequently entered judgment against the Appellant pursuant to the provisions of Order 22 Rule 9 of the High Court State (Civil Procedure) Rules 2010. Subsequently, on 1/8/2012, the Appellant filed an application before the trial Court seeking to set aside its judgment entered against him on 27/7/2012. The parties joined issues and upon hearing, the trial Court in its judgment delivered on 10/12/2012 dismissed the Appellant’s application seeking to set aside its judgment as a default judgment, hence this appeal.



The Court of Appeal determined the appeal on issue 3 formulated by the appellant which is:

Whether the Appellant was given fair hearing with the judgment delivered against him on 27/7/2012?




The Appellant’s counsel argued that on 27/7/2012, although the Appellant was present in court, his counsel was absent. Despite this, the trial court proceeded to hear the witnesses of the 1st Respondent and entered judgment against the Appellant without giving the Appellant the opportunity to cross-examine the witnesses. The counsel contended that this denial of the Appellant’s right to fair hearing, as guaranteed by the constitution, rendered the entire proceedings and judgment of the trial court invalid. The counsel relied on the case of Adebayo Ogundoyin & Ors v. David Adeyemi. The Appellant sought to set aside the null judgment and the subsequent ruling of the trial court, and requests a fresh trial for the 1st Respondent’s suit.

In response, the 1st Respondent’s counsel argued that the Appellant was indeed given the opportunity to be heard, but his rights were restricted by the provision of Order 22 Rule 9 of the Nasarawa State High Court (Civil Procedure) Rules 2010. The counsel emphasized that the rules of the trial court are valid and enforceable, and they ensure fairness for all parties involved. Since the Appellant failed to file his pleadings and did not take advantage of the opportunity to be heard, the counsel contended that the Appellant was not denied his right to fair hearing. It was further stated that justice is meant for those who actively participate in the legal process and not for those who are negligent. The counsel referred to Section 36 of the Constitution of Nigeria 1999 (as amended) and relied on the case of Amadi v. INEC. He urged the Court to dismiss the appeal for lacking merit and uphold the judgment of the trial court.



In conclusion, the Court of Appeal allowed the appeal.


CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING: Whether failure to afford a party an opportunity to cross examine the witnesses of his adversary amounts to breach of fair hearing

“Now, from the record of the proceedings of the lower Court, particularly on 27/7/2012 when the witnesses for the 1st Respondent, including the 1st Respondent himself, testified, it was clear that though the Appellant was present before the lower Court he was literally converted into a mere spectator as the lower Court made not a single effort to make him part of the proceedings before it, and what was the reason for this? It would seem simply because though he was personally present but because he had neither filed his Statement of Defense nor was his counsel present before the lower Court, he was therefore, reduced into a mere spectator in a case involving the determination of his own civic rights and obligation. The lower Court made no effort to ask the Appellant if he has any question or questions for the PW1 and PW2 at the conclusion of their evidence in chief, which cannot in any legal way be justified merely because the Appellant had not filed his Statement of Defense since a party is at liberty even to cross-examine merely on the pleadings of the party at whose instance a witness had testified in Court.

In other words, is it not a requirement of law or of any known procedure in our Courts that unless a party had filed his pleading, he cannot cross-examine a witness called by the adverse party? I think and I should say that he has a right to cross-examine all such witnesses of the adverse party whether or not he had filed his own pleading. It is then left for the Court to determine at its judgment writing stage which of such evidence elicited under cross-examination by a party who had not filed any pleadings are on facts already pleaded by the party at whose instance the witness was called and therefore, valid and whose such evidence are on facts not pleaded and therefore, would go to no issue. A Court of law cannot under such disguise of a party having not filed his own pleading deprive and/or deny him of his right to cross-examine witnesses called by his adversary. It is in this vein, I think and I so hold firmly that the lower Court was very wrong in the way it conducted its proceedings on 27/7/2012, which was clearly in breach of his constitutionally guaranteed right to fair hearing, to be heard before the decision affecting his civil right and obligations are reached by a Court of law. See Shola V. Ofili. (2020) LPELR – 51986 (CA) per Sir Biobele Abraham Georgewill JCA.

Now, a Court of law must at all times, in its proceedings, draw the line and maintain the balance between the need for expeditious determination of matters before it within a reasonable time and the due observance of the Constitutional rights of the parties to be fairly heard before decisions affecting their civil rights and obligations are reached by the Court. The right of the Appellant to cross-examine the PW1, the 1st Respondent, who was the Claimant himself, and his witness, the PW2, a right extended to the 2nd Respondent, a Co-Defendant in the same case by the same lower Court, but which the counsel to the 2nd Respondent on her use declined to utilize, was in my finding and I so firmly hold clearly an act amounting to a travesty of justice and a brazen breach of the Appellant’s right to fair hearing as constitutionally guaranteed to him by the Constitution of Nigeria 1999 (as amended). It is a right which is so sacrosanct that it cannot in any manner be abrogated in a Constitutional democracy such as ours by any Court of law in accordance with the due process of law.

I must say that there is the utmost need for Courts of law to be fair and render equal treatment to parties before it, more particularly in the observance of their right to fair hearing and full participation in the proceeding where no fault is attributable to them, including the right to cross-examine witnesses for the adverse or other parties, which is one of the hallmarks of the adversarial system of administration of justice in this country. Thus, it cannot be overemphasized that in law under the adversarial system of jurisprudence, which we operate in this country, the art of cross-examination is perhaps one of the greatest weapons to attack the case of an adversary. See Shola V. Ofili & Ors. (2020) LPELR – 51986 (CA) per Sir Biobele Abraham Georgewill JCA.

This cross-examination is very fundamental, as well as pivotal and indeed the central hub and gravity of the administration of both criminal and civil justice in Nigerian system. This is so because it reinforces in very clear terms the application of the rule of natural justice of audi alteram partem, hearing the other party. Therefore, to without any just or legal or reasonable cause or reason, deny a party the right to cross-examine his adversary and his witnesses would clearly amount to denial of fair-hearing as enshrined in Section 36(1) of the 1999 Constitution of Nigeria. See Onwuka V. Owolewa (2001) 7 NWLR (Pt. 713) 695. See also Shola V. Ofili & Ors. (2020) LPELR – 51986 (CA) per Sir Biobele Abraham Georgewill JCA; Okogi V. Okoh (2010) 9 NWLR (Pt. 1199)311.

I thought I should observe, and quite pertinently too, that whether or not a party before the Court is an irritant or recalcitrant or even outrightly annoying in his conduct, he is still entitled to the safeguards of the law put in place to ensure fair hearing to the citizen, and therefore, no Court of law can on account of the conduct of a party deny him of his right to fair hearing or abrogate it without any lawful justification merely on the basis of his annoying and/or recalcitrant or irritating conducts before the Court. So, also no matter how frustrating to expeditious hearing the conduct of a party may be and the amount of delay likely to be occasioned by such a party, yet no Court of law can deny such a party the right to be fairly heard in accordance with the due process of law in line with the constitutional guarantee to right to fair hearing before a decision affecting his civil rights and obligation is reached by the Court. See Shola V. Ofili & Ors. (2020) LPELR – 51986 (CA) per Sir Biobele Abraham Georgewill JCA.

The above is so because in law a proven breach of the right to fair hearing carries with it very devastating consequences on both the proceedings, no matter how meticulously conducted, and the judgment, no matter how sound, of the Court. It is thus, better for Courts to err on the side of caution when it comes to the observance of the right to fair hearing as constitutionally guaranteed to the parties before the Courts. It follows therefore, where there is a proven breach of the constitutionally guaranteed right to fair hearing of the parties, a decision reached thereby is both susceptible and liable to be set aside without much ado by an appellate Court if so called upon. Indeed, and in truth, the principles of fair hearing are not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away. It is a fundamental right of universal application. See Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40. See also Shola V. Ofili & Ors (2020) LPELR – 51986 (CA) per Sir Biobele Abraham Georgewill JCA; J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt.1138) @ p. 518; Robert C. Okafor & Ors. V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659.

In law, a proceeding in which one of the twin pillars of natural justice, audi attrem patten – let the other party be heard- was brazenly breached by the lower Court cannot be said to have been a fair proceeding at all! The Appellant was denied a fair hearing on 27/7/2012 by the lower Court and no reasonable person observing those one-sided and skewed proceedings of 27/7/2012 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand by the lower Court, without even affording the Appellant, the least of his rights to cross-examine these witnesses, would say that justice was not only done but was seen to have been done to the Appellant by the lower Court. See Shola V. Ofili & Ors. (2020) LPELR – 51986 (CA) per Sir Biobele Abraham Georgewill JCA.” Per GEORGEWILL, J.C.A.

Call Bridget Edokwe Esq on 08060798767 or send your email to barristerngblog@gmail.com

Thinking of Gifts And Souvenirs for your loved ones and special occasions, look no further. Tel: +234 7054211014 Email: jasminepconsult@gmail.com Instagram: https://instagram.com/jasmineperception?igshid=ZGUzMzM3NWJiOQ== WhatsApp: wa.me/2347054211014 Facebook: https://www.facebook.com/jasmine.perception

The cost is N8,000: To Order/get copies of the Book, contact the Author below

Email: haglersoco@gmail.com. Call: 08032253813

Address: Winners Chambers No 135 Ehi Road by Mosque Street beside First Bank Aba, Abia State

Author: Prof Theodore Okonkwo, Ph.D: CALL: 08065159968; 08068771923: PRICES: N100,000 (SPECIAL EDITION), N60,000.00 (UNIVERSAL EDITION)

Digital Evidence and eDiscovery Law Practice in Nigeria -By Emeka Arinze Esq. [ORDER NOW] - For book cost & placing order, visit www.decfi.com.ng/order

Steps To Subscribe To the Court of Appeal Reports Nigeria

Get ‘Personal Property Law in Nigeria’ By Chief Mike A.A. Ozekhome, SAN (FREE)

Click below to download FREE



BESTSELLER: Commercial and Economic Law in Nigeria By Chief Mike Ozekhome, SAN [ORDER NOW] To ORDER click the link https://kluwerlawonline.com/EncyclopediaChapter/IEL+Commercial+and+Economic+Law/COMM20210001 Buy the Book on Military Law, authored by a Veteran Military Lawyer, and launched personally by the then COAS.


To get a copy kindly Call 07044444777, 07044444999 & 08181999888 or visit us at: Investment House, 7th Floor, 21/25 Broad St., Lagos. Buy online @ www.alexandernigeria.com

Available at Frank Agbedo & Co. Crown Chambers. 5th floor, left wing, Nipost Building, Lagos Island, Lagos State. Tel: 08033254471, 09077950432 Email: frankagbedo@gmail.com
%d bloggers like this: